Impson v. State.

(Court of Appeals of Texas. June 1,
1892.)

Carrying Arms.

Where defendant went to a city 60 miles distant,
taking with him his pistol to have it repaired, and was arrested on the train
which he had boarded for home, he is a "person traveling," within the exception
of Pen. Code, art. 319, defining the offense of carrying
arms.

Davidson, J. This is an
appeal from a conviction based upon an information charging appellant with
carrying on his person a pistol. By the evidence it is (p.678)shown that the appellant lived in the Indian Territory,
about 60 miles from the city of Paris, in Lamar county, to which place he
brought the pistol, and while there had it repaired. He was seen on the railroad
train with the pistol in his possession, and was there arrested, and charged
with a violation of the statute prohibiting carrying arms. He had bought a
return ticket to his home, and had just boarded the outgoing train for that
point, when the officer made the arrest. Such are, in substance, the relative
facts in this case. We do not think this evidence constitutes a violation of the
statute. The statute prohibiting the carrying of arms does not apply to a person
traveling in this state. This, by act of the legislature, constitutes an
exception to the law. Pen. Code, art. 319; Stilly v. State, 27 Tex. App. 445, 11 S. W.
Rep. 458. Neither would it be in violation of law for a person to carry
his pistol to a proper place in order to have it repaired. While, under the law,
he should not be held guilty of its violation under such circumstances, yet he
would not be permitted to use this exception of the law as a means of violating
it. "It would be an unreasonable interpretation of the intent of the law to hold
that a person traveling might stop in a town or city, and idly stroll through
its streets, and visit its gambling dens and saloons and public places, armed
with a pistol. The practical result of such an interpretation of the statute
would cause cities and towns to be infested with armed men, while the citizens
of such places would be prohibited from carrying arms to protect themselves from
these privileged characters." Stilly v. State, 27 Tex. App. 445, 11 S. W.
Rep. 458. The exceptions contained in the statute cannot be used as a
cloak for violating the statute itself. That the accused is a traveler is a fact
to be passed upon by the jury, and their finding is usually conclusive of that
question, yet this is not an invariable nor an arbitrary rule. If the defense is
an honest one, and supported by the facts, and there is no evidence tending to
impeach it, the jury should acquit, and, under such circumstances, if a
conviction be secured, it should not be permitted to stand. As disclosed by the
evidence before us, appellant is brought within the exception contained in the
statute, and this is manifest from the state's testimony. The judgment is
reversed, and the cause remanded. Judges all present and
concurring.